Sosa - EC Brief

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					                       TABLE OF CONTENTS

INTEREST OF AMICUS CURIAE .................................... 1

SUMMARY OF ARGUMENT. ......................................... 3

ARGUMENT. ..................................................................... 5

I.        THE SUBSTANTIVE STANDARDS
          IMPOSED BY THE STATUTE SHOULD
          BE DEFINED BY REFERENCE TO
          INTERNATIONAL LAW. ..................................... 5

          A.        United States Courts Must Rigorously
                    Apply International Law to Determine the
                    Conduct that May Give Rise to a Tort in
                    Violation of the Law of Nations.................. 7

          B.        United States Courts Must Rigorously
                    Apply International Law to Determine
                    the Actors Who May Be Subject to
                    Liability for a Tort in Violation of the
                    Law of Nations.......................................... 10

II.       THE SUBJECT MATTER OF THE
          STATUTE SHOULD BE DEFINED BY
          REFERENCE TO THE LIMITS SET FORTH
          BY INTERNATIONAL LAW ON THE
          UNITED STATES’S JURISDICTION
          TO PRESCRIBE. .................................................. 12

          A.        When Jurisdiction to Prescribe Is Based
                    on Territory, Nationality, or Protection,
                    the Alien Tort Statute May Be
                    Interpreted to Incorporate the Full Body
                    of the Law of Nations................................ 13
B.   Where the United States’s Jurisdiction
     to Prescribe Is Based on Universal
     Jurisdiction, the Alien Tort Statute
     Should Be Interpreted to Reach Only
     That Conduct Subject to Such
     Jurisdiction. ............................................... 14

     1         Principles of Universal Jurisdiction
               Authorize the Regulation Only
               of Specific Types of Conduct........ 14

     2.        The Exercise of Universal Civil
               Jurisdiction Is Subject to
               Conditions that Comport
               With Its Justification. .................... 22




                          ii
           TABLE OF AUTHORITIES

                  FEDERAL CASES

Aguinda v. Texaco, Inc.,
   1994 WL 142006 (S.D.N.Y. Apr. 11,
   1994) ............................................................... 8

Amlon Metals, Inc. v. FMC Corp.,
   775 F.Supp. 668 (S.D.N.Y. 1991)................... 8

Beanal v. Freeport-McMoran, Inc.,
   197 F.3d 161 (5th Cir. 1999)............................ 8

Beanal v. Freeport-McMoran, Inc.,
   969 F.Supp. 362 (E.D. Lou. 1997)................ 12

Cohen v. Hartman,
   634 F.2d 318 (5th Cir. 1981)............................ 9

Damaskinos v. Societa Navigacion
  Interamericana,
  255 F. Supp. 919 (S.D.N.Y. 1966).................. 9

Demjanjuk v. Petrovsky,
  776 F.2d 571 (6th Cir. 1985).......................... 16

Doe I v. Islamic Salvation Front,
   993 F. Supp. 3 (D.D.C. 1998) ......................... 8

Doe I v. Unocal,
   Nos. 00-56603, 00-57197, 00-56628, 00-
   57195, 2002 WL 31063976 (9th Cir. Sept.
   18, 2002) ....................................................... 12




                                iii
In re Estate of Ferdinand E. Marcos Human
    Rights Litigation,
    978 F.2d 493 (9th Cir. 1992).......................... 11

Filartiga v. Pena-Irala,
    630 F.2d 876 (2d Cir. 1980)................... passim

Flores v. Southern Peru Copper Corp.,
   343 F.3d 140 (2d Cir. 2003)........................ 6, 8

Forti v. Suarez-Mason,
   672 F. Supp. 1531 (N.D. Cal. 1987) ............. 11

Forti v. Suarez-Mason,
   694 F. Supp. 707 (N.D. Cal. 1988) ........... 8, 11

Hamid v. Price Waterhouse,
  51 F.3d 1411 (9th Cir. 1995)............................ 9

Hilao v Estate of Marcos,
   25 F.3d 1467 (9th Cir. 1994).......................... 14

IIT v. Vencap, Ltd.,
    519 F.2d 1001 (2d Cir. 1975).......................... 9

Kadic v. Karadzic,
   70 F.3d 232 (2d Cir. 1995).................. 8, 11, 12

Murray v. The Schooner Charming Betsy,
  6 U.S. (2 Cranch) 64 (1804)................ 3, 12, 14

Mushikiwabo v. Barayagwiza,
  94 Civ. 3627, 1996 WL 164496
  (S.D.N.Y. April 9, 1996)................................. 8

Presbyterian Church of Sudan v. Talisman
   Energy, Inc.,
   244 F.Supp.2d 289 (S.D.N.Y. 2003)............. 12
                          iv
      Tel-Oren v. Libyan Arab Republic,
          726 F.2d 774 (D.C. Cir. 1984) ...................... 11

      The Paquete Habana,
         175 U.S. 677 (1900) ........................................ 7

      United States v. Yousef,
         327 F.3d 56 (2d Cir. 2003)............................ 14

      Valanga v. Metropolitan Life Ins. Co.,
         259 F. Supp. 324 (E.D. Pa. 1966) ................... 9

      Xuncax v. Gramajo, 886 F.Supp. 162 (D.
         Mass. 1995) ......................................... 8, 11, 23


                    FEDERAL STATUTES
Alien Tort Statute 28 U.S.C. § 1350........................ passim
      Torture Victim Protection Act of 1991,
         Pub.L. No. 102-256, 106 Stat. 73 (Mar.
         12, 1992) ................................................ passim



             NON-UNITED STATES CASES

      Attorney General of Israel v. Eichmann,
          36 ILR 277 (Isr. S. Ct. 1962) ........................ 16
      Case Concerning the Arrest Warrant of April
         11, 2000 (Democratic Republic of the
         Congo v. Belgium) (Feb. 14, 2002) ..... 2, 18, 26
      Continental Shelf (Libya v. Malta),
         1985 I.C.J. 13 .................................................. 6
      Cour de Cassation, 102 Revue Generale de
         Droit International Public 825 (1998) ........... 20
                                    v
Dutch Hoge Raad (Hoge Raad der
   Nederlanden), No. 749/01
   (CW 2323) (Sept. 18, 2001).......................... 20
Finnish Shipowners, Reports of International
   Arbitral Awards III (1934) ............................ 24
Interhandel Case,
    1959 I.C.J. 6 .................................................. 24
Island of Palmas Arbitration,
    Reports of International Arbitral Awards
    II (1928) ........................................................ 10
Lotus,
   1927 P.C.I.J., Ser. A, No. 10................... 15, 17
North Sea Continental Shelf,
   1969 I.C.J. 4 .................................................... 6
Norwegian Loans,
   1957 I.C.J. 39 ................................................ 24
Prosecutor v. Jorgic,
   Bundesverfassungsgericht, 2 BvR
   1290/99 (Dec. 12, 2000)................................ 16
Prosecutor v. Furundzija,
   IT-95-17/1-T (Dec. 10, 1998) ........... 12, 16, 18
Prosecutor v. Naletilic and Martinovic,
   IT-98-34-T (March 31, 2003) ....................... 12
Prosecutor v. Ntuyahaga, ICTR-90-40-T
   (Mar. 18, 1999) ............................................. 16
Prosecutor v. Tadic,
   IT-94-1-T (May 7, 1997) ........................ 12,16
Spanish Supreme Court,
   No. 327/2003 (Feb. 25, 2003) ....................... 21
Velasquez Rodriguez v. Honduras,
   Inter-Am. Ct. H.R.,Ser. C., No. 4 (1989) ...... 24
                     vi
Western Sahara, 1975 I.C.J. 12........................... 10


         SECONDARY LITERATURE
Michael Akehurst, Jurisdiction in
   International Law,
   46 BRIT. Y.B. INT'L L. 145 (1972-73) ........... 17
William Blackstone, COMMENTARIES ON THE
   LAWS OF ENGLAND (1769) .............................. 9
Curtis A. Bradley, Universal Jurisdiction
   and U.S. Law,
   2001 U. CHI. LEGAL F. 323.................... passim
J.L. Brierly, THE LAW OF NATIONS (1928)........ 5, 7
Ian Brownlie, PRINCIPLES OF PUBLIC
    INTERNATIONAL LAW (6th ed. 2003).............. 24
M.O. Chibundu, Making Customary
   International Law Through Municipal
   Adjudication: A Structural Inquiry,
   39 VA. J. INT'L L. 1069 (1999)...................... 19
James Crawford, THE INTERNATIONAL LAW
   COMMISSION’S ARTICLES ON STATE
   RESPONSIBILITY: INTRODUCTION, TEXT
   AND COMMENTARIES (2002)............................ 6

William S. Dodge, The Historical Origins of
   the Alien Tort Statute: A Response to the
   "Originalists,"
   19 HASTINGS INT'L & COMP. L. REV. 221
   (1996) .............................................................. 9
Yves Donzallaz, La convention de Lugano,
   Vol. III, No. 5203-5272 (1998)..................... 21



                               vii
Gerald Fitzmaurice, The General Principles
   of International Law,
   92 RECUEIL DES COURS 1 (1957) .................. 17
Rosalyn Higgins, International Law and
   Avoidance, Containment and Resolution
   of Disputes,
   1991 RECUEIL DES COURS 9.......................... 16
Human Rights Committee, International Law
  Association (British Branch), Report on
  Civil Actions in the English Courts for
  Serious Human Rights Violations Abroad,
  2001 E.H.R.L.R. 129..................................... 24
International Law Association, Final Report
    on the Exercise of Universal Jurisdiction
    in Respect of Gross Human Rights
    Offenses (2000)....................................... 15, 17
Robert Jennings & Arthur Watts,
   OPPENHEIM’S INTERNATIONAL LAW (9th
   ed. 1996) (2000) ...................................... 17, 24
Vaughan Lowe, Jurisdiction, in
   INTERNATIONAL LAW (Malcolm D. Evans
   (ed.) (2003)) .................................................. 15
Peter Malanczuk, AKEHURST’S MODERN
   INTRODUCTION TO INTERNATIONAL LAW
   (7th ed. 1997) ................................................. 10
F.A. Mann, The Doctrine of Jurisdiction in
   International Law,
   111 RECUEIL DES COURS 1 (1964)................ 17
F.A. Mann, The Doctrine of Jurisdiction
   Revisited After Twenty Years, 186
   RECUEIL DES COURS 19 (1984)..................... 17


                             viii
The Princeton Principles on Universal
   Jurisdiction (2001) ........................................ 25
Steven R. Ratner, Belgium's War Crimes
   Statute: A Postmortem, 97 AM. J. INT'L L.
   888 (2003) ..................................................... 25
Beth Stephens, Translating Filartiga: A
   Comparative and International Law
   Analysis of Domestic Remedies for
   International Human Rights Violations,
   27 YALE J. INT'L L. 1 (2002) ................... 19, 22
Joseph Modeste Sweeney, A Tort in Violation
   of the Law of Nations, 18 HASTINGS INT'L
   & COMP. L. REV. 445 (1995) .......................... 9
Christian Tomuschat, Crimes Against Peace
   and the Security of Mankind in the
   Recalcitrant Third States, in WAR CRIMES
   IN INTERNATIONAL LAW (Y. Dinstein and
   M. Tabory (eds.) 1996) ................................. 16
Theo van Boven, Economic and Social
   Council, Study Concerning the Right to
   Restitution, Compensation and
   Rehabilitation for Victims of Gross
   Violations of Human Rights and
   Fundamental Freedoms (1993)..................... 19
Beth Van Schaack, In Defense of Civil
   Redress: The Domestic Enforcement of
   Human Rights Norms in the
   Context of the Proposed Hague
   Judgments Convention,
   42 HARV. INT'L L. J. 141 (2001) ................... 19




                              ix
                 MISCELLANEOUS
Belgian Code of Criminal Procedure, art. 12a .... 21
Convention Against Torture and Other Cruel,
   Inhuman or Degrading Treatment or
   Punishment, U.N.G.A. Res. 39/46, 39
   U.N. GAOR Supp. (No. 51),
   U.N. Doc. A/39/51 (1984) ................ 16, 18, 25
Convention on the Prevention and
   Punishment of the Crime of Genocide,
   78 U.N.T.S. 277, Dec. 9, 1948...................... 16
Council Regulation (EC) No. 2271/96,
   O.J. (L 309) (Nov. 22, 1996)........................... 1
Council Regulation (EC) No. 44/2001, O.J.
   (L 12/1) (Jan. 16, 2001) ................................ 21
European Communities: Comments on the
   U.S. Regulations Concerning Trade with
   the U.S.S.R., reprinted in 21 I.L.M. 891
   (1982) .............................................................. 1
French Law No. 95-1 of Jan. 2, 1995.................. 20
French Law No. 96-432 of May 22, 1996........... 20
Geneva Convention (First),
   75 U.N.T.S. 31, Aug. 12, 1949 ..................... 16
Geneva Convention (Second),
   75 U.N.T.S. 85, Aug. 12, 1949 ..................... 16
Geneva Convention (Third),
   75 U.N.T.S. 135, Aug. 12, 1949 ................... 16
Geneva Convention (Fourth),
   75 U.N.T.S. 287, Aug. 12, 1949 ................... 16


                                x
German Federal Code of Criminal Procedure,
   art. 153f(2) .................................................... 20
International Convention on the Suppression
    and Punishment of the Crime of
    Apartheid, G.A. Res. 3068,
    28 U.N. GAOR, Supp. 30, U.N. Doc.
    A/9030 (1973) ............................................... 16
Nuremburg Charter of the International
   Military Tribunal, 8 U.N.T.S. 279, Aug.
   8, 1945........................................................... 17
Restatement (Third) of the Foreign Relations
   Law of the United States (1987)............. passim
Rome Statute for the International Criminal
  Court, U.N. Doc. A/CONF.183/9,
  July 17, 1998 ........................................... 12, 25
Statute of the International Court of Justice,
    59 Stat. 1055, June 26, 1945 ........................... 6
Torture Victims Protection Act of 1991,
   House Report No. 102-367 ..................... 19, 23
Treaty Establishing the European
   Community, O.J. (C 325) (Dec. 24, 2002)...... 2
Treaty on the European Union, O.J. (C 325)
   (Dec. 24, 2002)................................................ 2
U.S. Reservations, Declarations, and
   Understandings, Convention Against
   Torture and Other Inhuman or Degrading
   Treatment or Punishment, Cong. Rec. S.
   17486-01 (Oct. 27, 1990) .............................. 18
Vienna Convention on the Law of Treaties,
   U.N. Doc. A/CONF 39/27, May 23, 1969,
   reprinted in 8 I.L.M. 679 (1969)..................... 6

                               xi
              INTEREST OF AMICUS CURIAE

    Amicus curiae the European Commission is the executive
body of the European Community, a treaty-based
international organization that has competence to develop
and enforce Community-wide legislation in specified areas
of policy.1 The European Community is presently composed
of fifteen Member States (Austria, Belgium, Denmark,
Finland, France, Germany, Greece, Ireland, Italy,
Luxembourg, the Netherlands, Portugal, Spain, Sweden, and
the United Kingdom). Ten new Member States (Cyprus, the
Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta,
Poland, Slovakia, and Slovenia) will join on May 1, 2004.
Under the treaty framework, the European Community and
its Member States are both entitled to express views and to
legislate on issues of extraterritorial jurisdiction in relation to
their respective competencies.2

    The Treaty establishing the European Community
reflects a commitment to the rule of law, including the rule
of international law. It recognizes that the rule of law
requires due respect for, and an effective regime for the

1
     No counsel for any party authored this brief in whole or in part. No
person or entity other than the amicus curiae, its members, or its counsel,
made a monetary contribution to the preparation and submission of this
brief. Petitioner has given blanket consent to the filing of amicus briefs.
Amicus has obtained the written consent of Respondents to file this brief.
The letters of consent are being filed separately.
2
     The European Community has taken a position on the extraterritorial
effect of United States legislation on other occasions. See, e.g., Council
Regulation (EC) No. 2271/96, O.J. (L 309) 1 (Nov. 22, 1996) (adopted to
counter extraterritorial effects of U.S. Cuban Liberty Solidarity Act and
Iran and Libya Sanctions Act); see also European Communities:
Comments on the U.S. Regulations Concerning Trade with the U.S.S.R.,
reprinted in 21 I.L.M. 891 (1982).
enforcement of, fundamental human rights recognized by
international law.3

    The European Commission takes the view that, in order
to respect the authority of States and organizations, like the
European Community, exercising their authority to regulate
activities occurring on their own territory, and hence to
preserve harmonious international relations, States must
respect the limits imposed by international law on the
authority of any individual State to apply its laws beyond its
own territory.4 For that reason, the European Commission
has an interest whenever the United States adopts or applies
laws that purport to govern or impose potential liability for
conduct occurring beyond United States territory and that
affect the areas of competence of the European Community.

    United States courts have regularly applied the Alien
Tort Statute 28 U.S.C. § 1350 to extraterritorial conduct.
The statute is sometimes applied to reach conduct
undertaken outside the United States by nationals of Member
States of the European Community and legal entities
organized under the laws of Member States of the European
Community. Given that reach, amicus curiae the European
3
    E.g., Treaty Establishing the European Community, O.J. (C 325)
(Dec. 24, 2002), arts. 177(2) & 181a(1); see also Treaty on the European
Union, O.J. (C 325) (Dec. 24, 2002), arts. 6 & 11.
4
     See Case Concerning the Arrest Warrant of 11 April 2000
(Democratic Republic of the Congo v. Belgium) ¶ 5 (February 14, 2002)
(Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal)
(“One of the challenges of present-day international law is to provide for
stability of international relations and effective international intercourse
while at the same time guaranteeing respect for human rights. The
difficult task that international law today faces is to provide that stability
in international relations by a means other than the impunity of those
responsible for major human rights violations.”)



                                      2
Commission files this brief to urge this Court to interpret the
statute, as a matter of both substantive standards and
jurisdictional reach, in accord with the disciplined respect for
the principles of international law that the statute
incorporates.

               SUMMARY OF ARGUMENT

    The European Commission does not support either party
in this case. It also does not take a position on the question
whether, in addition to conferring jurisdiction on federal
courts, the Alien Tort Statute creates a cause of action for a
tort in violation of the law of nations or a treaty of the United
States. In the event the Court answers that question in the
affirmative, the European Commission addresses the scope
of the cause of action for a tort in violation of the law of
nations.

    Reflecting the respect of the founders of the United
States for international law, this Court has insisted for at
least two centuries, in accord with the principle first
articulated in the Charming Betsy case, that “an act of
congress ought never to be construed to violate the law of
nations, if any other possible construction remains.”5
Consistent with that principle, the Alien Tort Statute should
be interpreted by reference to the substantive and
jurisdictional limits set forth by the law of nations.

    The substantive standards imposed by the Alien Tort
Statute should be defined by reference to international law.
United States courts should rigorously apply international
law to determine the conduct that gives rise to a violation of

5
    Murray v. The Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118
(1804).



                                 3
the law of nations. In doing so, courts should rely upon well
established means for identifying customary international
law and should recognize only causes of action based on
truly international standards. Customary international law is
evolutionary in nature, so the norms encompassed by the
Alien Tort Statute will change over time. Accordingly,
United States courts should be careful to assess conduct by
reference to the international law that existed at the time the
conduct took place.

    United States courts should also rigorously apply
international law to determine the actors who may be subject
to liability for a tort in violation of the law of nations. In
particular, courts should recognize that only a subset of
norms that make up customary international law apply to
non-state actors, such as corporations. In determining
whether a non-state actor was complicit in a violation of
customary international law by a state actor, courts should
also apply international, rather than domestic, legal
standards.

    The subject matter of the statute should also be defined
by reference to the United States’s jurisdiction to prescribe
under international law. Where the United States has
jurisdiction to prescribe based on territoriality, nationality, or
the protection of its security interests, the Alien Tort Statute
may be interpreted to incorporate all torts in violation of the
law of nations. However, when the United States does not
have jurisdiction under one of the traditional bases, it may
exercise jurisdiction to prescribe only in accordance with the
principles governing universal jurisdiction.

    International law sanctions universal criminal jurisdiction
in order to end impunity for violations of the most
fundamental norms of international law, such as the
prohibitions against genocide, torture, war crimes, and
crimes against humanity. However, the existence and scope
                                4
of universal civil jurisdiction are not well established. To the
extent that universal civil jurisdiction is recognized, it
applies only to a narrow category of cases. Any exercise of
universal civil jurisdiction should also be limited in accord
with its rationale. Hence, a State should exercise universal
civil jurisdiction, where that exists under international law,
only when the claimant would face a denial of justice in any
State that could exercise jurisdiction on a traditional basis,
such as territory or nationality.

    Simply put, assuming that Congress intended to create a
cause of action when it enacted the Alien Tort Statute, the
European Commission respectfully suggests that Congress
intended federal courts not to breach the law of nations but to
rigorously apply it. This Court would honor that intent by
defining the scope of the cause of action created by the
statute to incorporate the substantive content and
jurisdictional limits imposed by international law.

                            ARGUMENT

I.       THE SUBSTANTIVE STANDARDS IMPOSED
         BY THE STATUTE SHOULD BE DEFINED BY
         REFERENCE TO INTERNATIONAL LAW.

    What the founders of the United States generally referred
to as the “law of nations” is now more commonly called
international law.6 Because the Alien Tort Statute expressly
refers to torts committed, emphasis added, “in violation of
the law of nations or a treaty of the United States,” United
States courts have interpreted the reference to the law of

6
     Restatement (Third) of the Foreign Relations Law of the United
States 41 (Introductory Note to pt. I, ch. 2) (1987) [hereinafter
Restatement (Third)] (“law of nations” later referred to as “international
law”); J.L. Brierly, THE LAW OF NATIONS 1 (1928).


                                    5
nations as a reference to a body of international law that is
not based on treaties – namely customary international law.7

   Customary international law is established by general
and consistent practice of States followed by them from a
sense of legal obligation, or opinio juris.8 It includes, but is
not limited to, jus cogens norms, which are fundamental,
peremptory norms that permit no derogation and prevail over
any inconsistent international law.9 Customary international
law does not include state practice based on social or moral,




7
     Flores v. Southern Peru Copper Corp., 343 F.3d 140, 143 (2d Cir.
2003). Another body of international law is comprised of “general
principles of law recognized by civilized states,” which form a source of
international law, see Statute of the International Court of Justice, 59
Stat. 1055, June 26, 1945, art. 38(1)(c). United States courts, however,
have not interpreted the Alien Tort Statute to authorize causes of action
based on general principles.
8
     Statute of the International Court of Justice, supra, art. 38(1)(b)
(identifying as source of international law “international custom, as
evidence of a general practice accepted as law”); North Sea Continental
Shelf, 1969 I.C.J. 4 ¶ 77; Continental Shelf (Libya v. Malta), 1985 I.C.J.
13, 29; Restatement (Third), supra, at § 102(2).
9
    Vienna Convention on the Law of Treaties, U.N. Doc. A/CONF
39/27, May 23, 1969, art. 53, reprinted in 8 I.L.M. 679 (1969);
Restatement (Third), supra, at § 102, cmt. k; see also Articles on
Responsibility of States for Internationally Wrongful Acts, art. 26,
adopted by the International Law Commission and noted by the General
Assembly in 2001 (confirming widespread acceptance of jus cogens);
James Crawford, THE INTERNATIONAL LAW COMMISSION’S ARTICLES ON
STATE RESPONSIBILITY: INTRODUCTION, TEXT AND COMMENTARIES 187
(2002).


                                    6
rather than legal, obligations, because such practice lacks the
requisite opinio juris.10

    The works of scholars may assist to identify customary
international law. As this Court has taught, however,
judicial tribunals look to scholarly work “not for the
speculations of their authors concerning what the law ought
to be, but for trustworthy evidence of what the law really
is.”11 In other words, courts look to these works in order to
determine lex lata (what the law is) rather than lex ferenda
(what the law ought to be).

A.      United States Courts Must Rigorously Apply
        International Law to Determine the Conduct that
        May Give Rise to a Tort in Violation of the Law of
        Nations.

    It follows from the definition of customary international
law that, in determining the conduct that may give rise to a
claim for a tort in violation of the law of nations under the
Alien Tort Statute, United States courts must respect four
basic principles.

    First, to State a claim for a tort in violation of the law of
nations, United States courts must require a plaintiff to allege
conduct that would violate norms that qualify as customary
international law under the well established means by which

10
    For an example of an examination of evidence of international law to
determine whether a given norm had achieved the status of law, see
Flores, 343 F.3d 140.
11
     The Paquete Habana, 175 U.S. 677, 700 (1900); see also J.L.
Brierly, THE LAW OF NATIONS 41-42 (1928) (“No text-writer can create
international law, but what he says may be valuable evidence of what the
law is.”).


                                   7
such law is identified. For this reason, United States courts
have held that allegations of conduct qualifying as torture,
genocide, war crimes, summary execution, and arbitrary
detention state claims under the statute,12 but that claims
based on norms that express aspirational goals rather than
defined legal obligations, or that do not find sufficiently
broad acceptance to qualify as customary international law,
do not.13 For example, the Court of Appeals for the Second
Circuit recently held that the right to life and health were
insufficiently definite to constitute rules of customary
international law, and that there was insufficient evidence to
establish a customary international law prohibiting intra-
national pollution.14

    Second, United States courts should bring within the
statute only truly international standards – that is, standards
that govern matters “of mutual, and not merely several,


12
     Filartiga v. Pena-Irala, 630 F.2d 876, 878 (2d Cir. 1980) (torture
actionable); see also Kadic v. Karadzic, 70 F.3d 232, 241-44 (2d Cir.
1995), cert. denied, 518 U.S. 1004 (1996) (genocide, war crimes,
summary execution, and torture actionable); Doe I v. Islamic Salvation
Front, 993 F. Supp. 3, 8 (D.D.C. 1998) (war crimes actionable);
Mushikiwabo v. Barayagwiza, 94 Civ. 3627, 1996 WL 164496 (S.D.N.Y.
April 9, 1996) (torture and genocide actionable); Xuncax v. Gramajo, 886
F. Supp. 162, 184 (D. Mass. 1995) (summary execution and arbitrary
detention actionable); Forti v. Suarez-Mason, 694 F. Supp. 707, 711
(N.D. Cal. 1988) (“Forti II”) (causing disappearances actionable).
13
     Beanal v. Freeport-McMoran, Inc., 197 F.3d 161, 166-8 (5th Cir.
1999) (environmental torts and cultural genocide not actionable);
Aguinda v. Texaco, Inc., 1994 WL 142006, at *6-7 (S.D.N.Y. Apr. 11,
1994) (environmental torts not actionable); Amlon Metals, Inc. v. FMC
Corp., 775 F. Supp. 668, 670-1 (S.D.N.Y. 1991) (environmental torts not
actionable).
14
     Flores, 343 F.3d at 160-2.


                                   8
concern” of States.15 For example, although murder may be
universally proscribed by States in their domestic law, it
should not provide a cause of action under the statute unless
and until it reaches the level of international concern – in
other words, unless it occurs in such circumstances or on
such a scale that it would qualify as a war crime, a crime
against humanity, or genocide.16 For that reason, United
States courts have regularly rejected claims based on
domestic standards that do not involve matters of
international concern.17

    Third, because by definition customary international law
evolves over time, United States courts must recognize that
the norms encompassed by the Alien Tort Statute may also
change over time. For example, at the time the statute was
enacted, the principal offenses recognized under the law of
nations were violations of the right of safe passage,
infringements on the rights of ambassadors, and piracy.18
15
     Filartiga, 630 F.2d at 888.
16
     IIT v. Vencap, Ltd., 519 F.2d 1001, 1015 (2d Cir. 1975) (though all
states prohibit theft, law of nations does not incorporate that norm).
17
     E.g., Hamid v. Price Waterhouse, 51 F.3d 1411, 1417-18 (9th Cir.
1995) (fraud, breach of fiduciary duty, and misappropriation of funds not
actionable); Cohen v. Hartman 634 F.2d 318, 319-20 (5th Cir. 1981)
(tortious conversion of funds not actionable); Valanga v. Metropolitan
Life Ins. Co. 259 F. Supp. 324, 326-30 (E.D. Pa. 1966) (refusal to pay
proceeds under insurance contract not actionable); Damaskinos v. Societa
Navigacion Interamericana 255 F. Supp. 919, 923 (S.D.N.Y. 1966)
(negligence and unseaworthiness of vessel not actionable).
18
    4 William Blackstone, COMMENTARIES ON THE LAWS OF ENGLAND
68 (1769); see William S. Dodge, The Historical Origins of the Alien
Tort Statute: A Response to the “Originalists,” 19 HASTINGS INT’L &
COMP. L. REV. 221 (1996); Joseph Modeste Sweeney, A Tort in
Violation of the Law of Nations, 18 HASTINGS INT’L & COMP. L. REV.
445 (1995).


                                   9
Today, by contrast, customary international law reaches a
broader range of conduct.19

    Finally, and conversely, the evolutionary nature of
customary international law requires that United States
courts exercise care in order to assess conduct by reference
only to norms that had crystallized into law by the time of
the conduct alleged. Because individuals, States, and other
entities capable of incurring legal liability are entitled to
make decisions about their conduct based on the legal
standards prevailing at the time they act, courts may not
judge yesterday’s actions by today’s standards. In other
words, the problem of “inter-temporal law” is addressed
under international law, as under other systems, by
application of “the general principle that laws should not be
applied retroactively.”20

B.       United States Courts Must Rigorously Apply
         International Law to Determine the Actors Who
         May Be Subject to Liability for a Tort in Violation
         of the Law of Nations.

    Just as courts must apply international law to determine
any cause of action created by the Alien Tort Statute, so, too,
must they apply international law in order to determine the
actors who may be subject to the norms reflected in

19
     E.g., Restatement (Third), supra, at § 702.
20
     Peter Malanczuk, AKEHURST’S MODERN INTRODUCTION TO
INTERNATIONAL LAW 155 (7th ed. 1997); see Western Sahara, 1975 I.C.J.
12, 37-40 (Advisory Opinion); Island of Palmas Arbitration, Reports of
International Arbitral Awards II, 829, 845 (1928) (Huber, J.) (“a juridical
fact must be appreciated in light of the law contemporary with it, and not
of the law in force at the time when a dispute in regard to it arises or falls
to be settled”).



                                     10
international law and hence to liability under the statute for a
tort in violation of the law of nations.

    First, only a subset of norms recognized as customary
international law applies to non-state actors, such as
corporations, and hence only that subset may form the basis
of liability against such actors. For example, non-state actors
may be liable for genocide, war crimes, and piracy,21 while
torture, summary execution, and prolonged arbitrary
detention do not violate the law of nations unless they are
committed by state officials or under color of law.22

    Second, United States courts must also apply
international law to determine the circumstances in which a
non-state actor may be held liable for a violation of a
standard not directly applicable to that actor on the ground
that the non-state actor was complicit in a violation of that
norm by state actors. For example, in Doe I v. Unocal, the
Court of Appeals for the Ninth Circuit looked to case law
from the International Criminal Tribunal for the former
Yugoslavia and the International Criminal Tribunal for
Rwanda to ascertain the appropriate standard under
international law to apply to a claim that a defendant in an
Alien Tort Statute case had aided and abetted the violation of

21
     Restatement (Third), supra, at 71 (Introductory Note to pt. II).
22
     E.g., Kadic, 70 F.3d at 241-6 (torture and summary execution); In re
Estate of Ferdinand E. Marcos Human Rights Litig., 978 F.2d 493, 500
(9th Cir. 1992), cert. denied, 508 U.S. 972 (1993) (torture); Xuncax, 886
F. Supp. at 184-5 (torture, summary execution, disappearance, and
arbitrary detention); Forti II, 694 F. Supp. at 711 (causing
disappearances); Forti v. Suarez-Mason, 672 F. Supp. 1531, 1541-43
(N.D. Cal. 1987) (“Forti I”) (torture, summary execution and prolonged
arbitrary detention); Tel-Oren v. Libyan Arab Republic, 726 F.2d 774,
794-5 (D.C. Cir. 1984) (Edwards, J., concurring), cert. denied, 470 U.S.
1003 (1985) (torture).


                                    11
a norm within the scope of the statute but directly applicable
only to state actors.23

II.     THE SUBJECT MATTER OF THE STATUTE
        SHOULD BE DEFINED BY REFERENCE TO
        THE    LIMITS     SET    FORTH      BY
        INTERNATIONAL LAW ON THE UNITED
        STATES’S JURISDICTION TO PRESCRIBE.

    The law of nations includes not only substantive norms
but also limitations on the authority of States to apply their
own law to conduct outside their own territory. In accord
with the Charming Betsy principle,24 this Court should
construe the Alien Tort Statute to define the subject matter
addressed by the statute to extend only so far as the United
States’s jurisdiction to prescribe under international law.25




23
    Doe I v. Unocal, Nos. 00-56603, 00-57197, 00-56628, 00-57195,
2002 WL 31063976, at *8-13 (9th Cir. Sept. 18, 2002), reh’g en banc
granted and opinion vacated, 2003 WL 359787 (9th Cir. Feb. 14, 2003);
Prosecutor v. Naletilic and Martinovic, IT-98-34-T, at ¶ 63 (March 31,
2003); Prosecutor v. Furundzija, IT-95-17/1-T, at ¶¶ 190-249 (Dec. 10,
1998), reprinted in 38 I.L.M. 317 (1999); Prosecutor v. Tadic, IT-94-1-
T, at ¶¶ 688-692 (May 7, 1997); Rome Statute for the International
Criminal Court, U.N. Doc. A/CONF.183/9, July 17, 1998, art. 25(3)(c),
reprinted in 37 I.L.M. 999 (1998).
24
    The Charming Betsy, 6 U.S. (2 Cranch) at 118; Restatement (Third),
supra, at § 114.
25
    See Kadic, 70 F.3d at 240; Presbyterian Church of Sudan v.
Talisman Energy, Inc., 244 F. Supp. 2d 289, 306 (S.D.N.Y. 2003);
Beanal v. Freeport-McMoran, Inc., 969 F. Supp. 362, 371 (E.D. Lou.
1997).


                                  12
A.       When Jurisdiction to Prescribe Is Based on
         Territory, Nationality, or Protection, the Alien
         Tort Statute May Be Interpreted to Incorporate
         the Full Body of the Law of Nations.

    Jurisdiction to prescribe concerns the authority of States
to apply their laws to certain activities, relations, and
persons.26 International law recognizes that States have
jurisdiction to prescribe when there is a nexus between the
conduct the State purports to regulate and the regulating
State.

    It is well established that States have jurisdiction to
regulate conduct occurring on their territory (the territoriality
principle); to regulate the conduct of their own nationals no
matter where that conduct occurs (the nationality principle);
and to regulate the conduct of non-nationals who are outside
their territory when that conduct is directed against the
security of the regulating State (the protective principle).27

    Interpreting the statutory reference to torts in violation of
the law of nations, United States courts have held that the
statute reaches violations of “well-established, universally
recognized norms of international law”28 or “specific,
26
     Restatement (Third), supra, at § 401.
27
     Restatement (Third), supra, at § 402. The passive personality
principle, by which States assert authority to exercise prescriptive
jurisdiction based on the nationality of the victim, is irrelevant to the
Alien Tort Statute because the statute permits claims only by aliens. As a
practical matter, the effects doctrine, the validity of which as a matter of
international law is subject to substantial controversy, would be unlikely
to form the basis of an assertion of prescriptive jurisdiction over the
conduct regulated by the Alien Tort Statute. Thus, this brief addresses
neither of those asserted bases for prescriptive jurisdiction.
28
     Filartiga, 630 F.2d at 888.


                                    13
universal and obligatory” norms.29 To the extent these
standards are applied to conduct on United States territory,
by a United States national, or directed against United
States’s security interests, the statute falls within the United
States’s jurisdiction to prescribe under well established
principles of international law. Hence, in interpreting the
statute to reach such conduct, United States courts act in full
accord with the Charming Betsy principle.

B.       Where the United States’s Jurisdiction to
         Prescribe Is Based on Universal Jurisdiction, the
         Alien Tort Statute Should Be Interpreted to Reach
         Only That Conduct Subject to Such Jurisdiction.

    Universal jurisdiction permits States to exercise
jurisdiction over matters of universal concern even when the
State exercising jurisdiction has no connection with the
case.30 In the absence of a traditional basis for prescriptive
jurisdiction, the Alien Tort Statute should not be read to
reach claims based on all violations of the law of nations, but
only such conduct as the United States would have authority
to regulate under principles of universal jurisdiction.31

     1. Principles of Universal Jurisdiction Authorize the
        Regulation Only of Specific Types of Conduct.

   Modern international law recognizes two categories of
conduct subject to universal criminal jurisdiction, which
29
    Hilao v Estate of Marcos, 25 F.3d 1467, 1475 (9th Cir. 1994), cert.
denied, 513 U.S. 1126 (1995).
30
     Restatement (Third), supra, at § 404, cmt. a.
31
     United States v. Yousef, 327 F.3d 56, 103 (2d Cir. 2003) (universal
jurisdiction encompasses only limited set of crimes that cannot be
expanded judicially).


                                    14
correspond to the two basic rationales justifying such
jurisdiction.32 The first category is made up of conduct so
heinous – such as genocide – that every State has a
legitimate interest in its suppression and punishment. As to
these crimes, universal jurisdiction increases the prospect
that heinous wrongdoers will be brought to justice.

    The second category is made up of serious crimes – such
as piracy, the crime that prompted the development of the
principle of universal jurisdiction – whose perpetrators might
be able to avoid the ordinary jurisdiction of states. As to
these crimes, universal jurisdiction provides a means of
calling the wrongdoer to account when a case could not be
brought in states that might exercise jurisdiction on
traditional bases.33

    Although the existence of universal criminal jurisdiction
is well established, its scope continues to develop under
treaty and customary international law.34 For example,
although universal jurisdiction does not apply to all norms


32
   Vaughan Lowe, Jurisdiction, in INTERNATIONAL LAW 329, 343
(Malcolm D. Evans (ed.) (2003)).
33
     Lowe, supra, at 343.
34
     See generally International Law Association, Final Report on the
Exercise of Universal Jurisdiction in Respect of Gross Human Rights
Offenses 5-8 (2000) [hereinafter “I.L.A. Report”] (including genocide,
crimes against humanity, war crimes and torture); Restatement (Third),
supra, at § 404 (including genocide, war crimes, piracy, slave trade,
attacks on or hijacking of aircraft). Despite the authority normally
carried by judgments of the Permanent Court of International Justice, its
holding in Lotus, 1927 P.C.I.J., Ser. A, No. 10, at 19, that the exercise of
criminal jurisdiction is permitted under international law unless
affirmatively prohibited has been largely discredited. See Lowe, supra,
at 335.


                                    15
recognized under customary international law,35 there is
support under international law for universal jurisdiction
over torture,36 genocide,37 war crimes,38 and crimes against
humanity.39


35
    For example, systematic racial discrimination, such as apartheid, is
widely condemned by states, but, at least at present, it does not give rise
to universal jurisdiction because, among other reasons, the International
Convention on the Suppression and Punishment of the Crime of
Apartheid, G.A. Res. 3068, 28 U.N. GAOR, Supp. 30, U.N. Doc. A/9030
(1973), Article 5 of which allows persons charged with an apartheid
crime to be tried by a competent tribunal of any State Party, has not been
widely ratified. See Rosalyn Higgins, International Law and the
Avoidance, Containment and Resolution of Disputes, 1991 RECUEIL DES
COURS 9, 97; Christian Tomuschat, Crimes Against Peace and the
Security of Mankind in the Recalcitrant Third States, in WAR CRIMES IN
INTERNATIONAL LAW 41, 56 (Y. Dinstein and M. Tabory (eds.) 1996).
36
    Universal criminal jurisdiction is obligatory for states that are parties
of the Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, U.N.G.A. Res. 39/46, 39 U.N.
GAOR Supp. (No. 51), U.N. Doc. A/39/51 (1984), arts. 5(2) and is
permitted generally under customary international law, see Prosecutor v.
Furundzija, IT-95-17/1-T, at ¶ 156 (Dec. 10, 1998), reprinted in 38
I.L.M. 317 (1999).
37
     Universal criminal jurisdiction is not provided by Article 6 of the
Convention on the Prevention and Punishment of the Crime of Genocide
78 U.N.T.S. 277, December 9, 1948, but is accepted under customary
international law. Prosecutor v. Ntuyahaga ICTR-90-40-T (Mar. 18,
1999); Prosecutor v. Tadic, IT-94-1-AR72, at ¶ 62 (Oct. 2, 1995). This
rule is confirmed by state practice. See, e.g., Attorney Gen’l of Israel v.
Eichmann, 36 ILR 277, 303-4 (Isr. S. Ct., 1962); Demjanjuk v.
Petrovsky, 776 F.2d 571, 582-3 (6th Cir. 1985), cert. denied, 475 U.S.
1016 (1986); Prosecutor v. Jorgic, Bundesverfassungsgericht (German
Federal Constitutional Court), 2 BvR 1290/99 (Decision of December 12,
2000), reprinted in Neue Juristische Wochenschrift 1848, 1852 (2001).
38
    Universal criminal jurisdiction is mandatory for states parties to the
Geneva Conventions for grave breaches, including willful killing, torture
or inhumane treatment and willfully causing great suffering. First

                                    16
    Universal civil jurisdiction has received less attention
than universal criminal jurisdiction, and its existence and
scope are not well established under international law.

    The Restatement takes the position that universal
jurisdiction may apply in the civil context, and the Report on
Universal Jurisdiction of the International Law Association
notes that the United States has exercised universal
jurisdiction in the civil context “with some success.”40

Geneva Convention, 75 U.N.T.S. 31, August 12, 1949, art. 49; Second
Geneva Convention, 75 U.N.T.S. 85, August 12, 1949, art. 50; Third
Geneva Convention, 75 U.N.T.S. 135, August 12, 1949, art. 129; and
Fourth Geneva Convention, 75 U.N.T.S. 287, August 12, 1949, art. 146.
These offenses are listed under Art 8(2)(a) of the Statute of the
International Criminal Court, but the application of universal jurisdiction
to the other war crimes listed in Art 8(2)(b) is not yet established.
39
     Universal criminal jurisdiction exists over crimes against humanity
that were recognized in art. 6(2)(c) of the Nuremburg Charter of the
International Military Tribunal, 8 U.N.T.S. 279, August 8, 1945,
including murder, extermination, enslavement, deportation, and other
inhumane acts. The application of universal jurisdiction to the new
elements of the crime listed in Article 7 of the Statute of the International
Criminal Court, including the crimes of apartheid and forcible transfer of
populations, is not yet established.
40
     Restatement (Third), supra, at § 404, cmt. b (“In general, jurisdiction
on the basis of universal interests has been exercised in the form of
criminal law, but international law does not preclude the application of
non-criminal law on this basis, for example, by providing a remedy in
tort or restitution for victims of piracy.”); I.L.A. Report, supra, at 2-3;
see also Robert Jennings & Arthur Watts, OPPENHEIM’S INTERNATIONAL
LAW, 469-70 (9th ed. 1996) (citing Filartiga for proposition that serious
violations of human rights, such as torture, are subject to universal
jurisdiction).    Some highly respected scholars have argued that
international law imposes no limits on the exercise of civil jurisdiction by
States. See Michael Akehurst, Jurisdiction in International Law, 46
BRIT. Y.B. INT’L L. 145, 177 (1972-73); Gerald Fitzmaurice, The
General Principles of International Law, 92 RECUEIL DES COURS 1, 218
(1957). This view commands little modern support since it is based on

                                    17
Similarly, the International Criminal Tribunal for the former
Yugoslavia has recognized the possibility of victims bringing
civil suits for damages in foreign courts.41

    At the same time, while Judges Higgins, Kooijmans, and
Buergenthal, in their Separate Opinion in the Arrest Warrant
case in the International Court of Justice, saw in the Alien
Tort Statute “the beginnings of a very broad form of
extraterritorial jurisdiction” in the civil sphere, they also
noted that the United States’s assertion of such jurisdiction in
that statute had “not attracted the approbation of States
generally.”42 By the same token, while Article 14(1) of the
Convention Against Torture provides that each state party
shall ensure that torture victims have an “enforceable right to
fair and adequate compensation,” there is disagreement
whether the Convention requires States to exercise universal
jurisdiction or simply jurisdiction over torture committed on
their territory.43


the same discredited approach taken in the Lotus case. See supra n. 34;
see also F.A. Mann, The Doctrine of Jurisdiction in International Law,
111 RECUEIL DES COURS 1, 73-81 (1964); F.A. Mann, The Doctrine
of Jurisdiction Revisited After Twenty Years, 186 RECUEIL DES COURS
19, 20-33, 67-77 (1984).
41
    Prosecutor v. Furundzija, IT-95-17/1-T, at ¶ 155 (Dec. 10, 1998),
reprinted in 38 I.L.M. 317 (1999).
42
     Case Concerning the Arrest Warrant of 11 April 2000 (Democratic
Republic of the Congo v. Belgium) ¶ 48 (February 14, 2002) (Joint
Separate Opinion of Judges Higgins, Kooijmans and Buergenthal).
43
     Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, supra, art. 14(1). While the United States, in
adhering to the Convention Against Torture, expressed its understanding
that the obligation to provide a civil remedy extended only to torture
committed on its territory, see U.S. Reservations, Declarations, and
Understandings, Convention Against Torture and Other Inhuman or

                                  18
   Finally, academic commentary on the existence and
scope of universal civil jurisdiction is divided.44

    International law is also unsettled as to the
correspondence between the categories of conduct regulable
as a matter of universal criminal jurisdiction and those
regulable as a matter of universal civil jurisdiction. Several
structural differences between civil and criminal jurisdiction
counsel caution in recognizing universal civil jurisdiction.


Degrading Treatment or Punishment, Cong. Rec. S. 17486-01 (October
27, 1990); see also Curtis A. Bradley, Universal Jurisdiction and U.S.
Law, 2001 U. CHI. LEGAL F. 323, 346, the text and the legislative history
of the Torture Victims Protection Act of 1991, which implemented the
Convention Against Torture as a matter of United States law, make it
clear that that statute creates universal civil jurisdiction over torture. See
Pub. L. No. 102-256, 106 Stat. 73 (Mar. 12, 1992); Torture Victim
Protection Act of 1991, House Report No. 102-367 1, 4-5.
44
     Compare, e.g., Beth Stephens, Translating Filartiga: A Comparative
and International Law Analysis of Domestic Remedies for International
Human Rights Violations, 27 YALE J. INT’L L. 1 (2002) (universal civil
jurisdiction does and should exist); Beth Van Schaack, In Defense of
Civil Redress: The Domestic Enforcement of Human Rights Norms in the
Context of the Proposed Hague Judgments Convention, 42 HARV. INT’L
L. J. 141 (2001) (same); with, e.g., Bradley, supra, at 343-9 (not clear
that universal jurisdiction applies to civil jurisdiction and application of
universal jurisdiction to civil cases more problematic than criminal
cases); M.O. Chibundu, Making Customary International Law Through
Municipal Adjudication: A Structural Inquiry, 39 VA. J. INT’L L. 1069,
1130-4 (1999) (traditional justifications for universal jurisdiction
inapposite to civil jurisdiction, but there may be arguments for
reinterpreting doctrine). See also Special Rapporteur Theo van Boven,
Economic and Social Council, Study Concerning the Right to Restitution,
Compensation and Rehabilitation for Victims of Gross Violations of
Human Rights and Fundamental Freedoms (1993), reprinted in 59 Law
& Contemp. Prob. 283, 347 (1996) (states should maintain civil and
criminal procedures with universal jurisdiction for human rights
violations that constitute crimes under international law).


                                     19
For example, States will generally exercise jurisdiction to try
a defendant for crimes only when the defendant is within the
State’s custody, thereby limiting the scope of universal
criminal jurisdiction, as well as the scope of civil actions
attached to such jurisdiction.45

    For another example, because in most States criminal
prosecutions are initiated by and remain under the control of
public authorities, criminal cases are subject to the plenary
and unfettered discretion of public officials, who can take
into account such considerations of public policy and
international comity as they deem appropriate.46 Thus, in
deciding whether to bring or maintain a prosecution, public
officials may consider whether another State is better
equipped to exercise jurisdiction, or has a greater interest in
45
     See, e.g., France, Law No. 95-1 of January 2, 1995, art. 2,
implementing Security Council Resolution 827 establishing the
International Criminal Tribunal for the former Yugoslavia, in Official
Journal of the French Republic 71; January 3, 1995; French Law No. 96-
432 of May 22, 1996, art. 2, implementing Security Council Resolution
955 establishing the International Criminal Tribunal for Rwanda, in
Official Journal of the French Republic 7695; May 23, 1996; Cour de
Cassation, Decision of January 16, 998, 102 REVUE GENERALE DE DROIT
INTERNATIONAL PUBLIC 825, 827 (1998) (suspect must be present for
exercise of universal jurisdiction for genocide and crimes against
humanity); Netherlands, Dutch Hoge Raad (Hoge Raad der
Nederlanden), No. 749/01 (CW 2323) § 8.5 (September 18, 2001),
available at <http://www.rechtspraak.nl> (exercise of jurisdiction over
torture committed abroad requires presence of accused). But see
Germany, Federal Code of Criminal Procedure, art. 153f (2), No. 3 and 4,
as amended by art. 3, No. 5 of the Law introducing a Federal Code on
Crimes against international law (Völkerstrafgesetzbuch) (June 26,
2002), in Federal Official Journal, Bundesgesetzblatt, pt. I, 2253, 2259
(jurisdiction may be exercised over suspects not present but prosecutors
allowed to close investigation if suspect not present and no presence
expected).
46
     Bradley, supra, at 347.


                                  20
exercising jurisdiction, because the act occurred on its
territory or involved its nationals as perpetrators.47

    At the same time, other factors counsel in favor of
recognizing universal civil jurisdiction for those offenses that
come within universal criminal jurisdiction. Some legal
systems permit the recovery of monetary compensation by
the victim as part of the criminal prosecution of the
wrongdoer.48 In these systems, civil jurisdiction would

47
     E.g., Belgium, Code of Criminal Procedure, art. 12a, No. 4, as
amended by the law of August 5, 2003 on grave violations of
international humanitarian law, in Moniteur belge (Official Journal)
(August 7, 2003), available at <http://www.just.fgov.be> (prosecutor
will request magistrate investigate complaint unless interests of justice or
international obligations require matter be brought before international
tribunal or tribunal of another state, provided alternative tribunal
competent, independent, impartial and fair); Germany, Federal Code of
Criminal Procedure, art. 153f (2) No.4 (prosecutor may decide not to
investigate if jurisdiction based on territoriality or nationality of victim or
suspect exists elsewhere); Spain, Spanish Supreme Court, No. 327/2003
(February 25, 2003), reprinted in 42 I.L.M. 686, 698 (2003) (deference
given to courts in place where act committed unless authorities of that
state impede prosecution or directly participated in crime).
48
     An action civile is accepted and practiced in Austria, Belgium,
Denmark, France, Luxembourg, the Netherlands, Portugal, and Sweden,
and is possible in Finland, Germany, Greece, Italy, and Spain. Yves
Donzallaz, La convention de Lugano du 16 septembre 1998 concernant
la compétence judiciaire et l’exécution des décisions en matire civile et
commerciale, Vol. III, No. 5203-5272 (1998); see also Council
Regulation (EC) No. 44/2001, O.J. (L 12/1) (January 16, 2001), art. 5,
No. 4, on jurisdiction and the recognition and enforcement of judgments
in civil and commercial matters (civil claim for damages or restitution
may be brought against person in Member State in which person not
domiciled, provided that claim based on act giving rise to criminal
proceedings and brought before court seized of those proceedings, to
extent that court has jurisdiction under own law to entertain civil
proceedings).


                                     21
extend to the same category of cases as universal criminal
jurisdiction, but it would also be subject to the same
limitations, such as requiring the presence of the defendant
before exercising jurisdiction.49 While the recovery of
damages in these systems is not fully comparable with
universal civil jurisdiction, these systems demonstrate the
difficulty in drawing strict distinctions between civil and
criminal jurisdiction. They reflect, too, the broader point
that criminal punishment and civil liability both operate, with
different intensity, to vindicate important standards of
conduct and deter future wrongdoing.50

    Further, although the discretion of a national court to
decline adjudication of a civil case may be more limited than
that of public authorities to bring or maintain a criminal
prosecution, there remain well established grounds on which
national courts will decline to proceed in civil cases
inappropriate for adjudication in the forum in which they are
brought. For example, in the United States, particular facts
and circumstances may require or permit a court to decline to
proceed on grounds of lack of personal jurisdiction, forum
non conveniens, or comity.

     2. The Exercise of Universal Civil Jurisdiction Is
        Subject to Conditions that Comport With Its
        Justification.

    If universal jurisdiction is justified by the international
community’s determination to end impunity for conduct that
violates the most fundamental norms of international law,
then the reach of that jurisdiction may properly be limited to
conduct that would otherwise fall beyond effective sanction.
49
     See, supra, n.45.
50
     Stephens, supra, at 51.


                               22
As a result, approaches to universal civil jurisdiction are
emerging that favor the pursuit of remedies in States that
may regulate the offensive conduct on traditional bases of
jurisdiction.

    A prime example is the Torture Victim Protection Act
(TVPA), in which the United States Congress both
implemented the Convention Against Torture and endorsed
the prevailing interpretation of the Alien Tort Statute as a
protection against other human rights abuses.51 In the
TVPA, Congress instructed United States courts to decline to
proceed unless the claimant had exhausted adequate and
available remedies in the place in which the conduct giving
rise to the claim occurred.52 Congress imposed this
requirement in order to strike a balance between, on the one
hand, the need to provide redress for victims of flagrant
human rights abuses, considering that judicial protection is
often least effective in those countries where abuses are most
common, and, on the other, the need to ensure that United
States courts would not intrude upon cases that could be
more appropriately handled by courts where the alleged
torture or killing occurred, the need to avoid exposing United
States courts to unnecessary burdens, and the need to
encourage the development of meaningful remedies in other
countries.53

51
     Torture Victim Protection Act of 1991, Pub. L. No. 102-256, 106
Stat. 73 (Mar. 12, 1992); House Report No 102-367 1, 3.
52
     Torture Victims Protection Act of 1991, supra, art. 2(b); see Xuncax,
886 F. Supp. at 179 (Art. 2(b) is not intended to create prohibitively
stringent condition and not require exhaustion of unobtainable,
ineffective, inadequate, or obviously futile remedies).
53
     Torture Victim Protection Act of 1991, House Report No. 102-367,
at 1, 3-5.



                                   23
    The TVPA exhaustion requirement derives from a rule of
general international law requiring that, before a claim may
be asserted in an international forum, the claimant must have
exhausted remedies in the domestic legal system.54 This
doctrine gives a State an opportunity to prevent, correct, or
remedy conduct that would otherwise constitute a violation
of international law. At the same time, to protect against a
denial of justice and prevent wasteful resort to ineffective
remedies, the doctrine excuses an attempt to exhaust when
local redress is unavailable or obviously futile.55 In similar
fashion, an exercise of universal civil jurisdiction should be
predicated on a showing that there was no reasonable
prospect of redress in either a State exercising jurisdiction on
a traditional basis or through an international mechanism.56


54
    The notion of exhaustion of local remedies was originally
established in the area of diplomatic protection. See Interhandel Case,
1959 I.C.J. 6, 27 (Preliminary Objections) (local remedies rule well-
established rule of customary international law); Ian Brownlie,
PRINCIPLES OF PUBLIC INTERNATIONAL LAW 472-81 (6th ed. 2003);
Jennings & Watts, supra, at 522-6. It is also applied by international
human rights bodies when determining the admissibility of individual
applications.
55
    Finnish Shipowners, Reports of International Arbitral Awards III,
1484, 1535 (1934); Norwegian Loans, 1957 I.C.J. 39-40 (Separate
Opinion of Judge Lauterpacht); Velasquez Rodriguez v. Honduras, Inter-
Am. Ct.H.R., Ser. C, No. 4 (1989) (Merits), reprinted in 95 I.L.R., 259,
291, 304-9; Restatement (Third), supra, at § 703, cmt. d, § 713, cmt. f.
56
     Human Rights Committee, International Law Association (British
Branch), Report on Civil Actions in the English Courts for Serious
Human Rights Violations Abroad, 2001 E.H.R.L.R. 129, 132. Support
for a denial of justice rule in a civil law context also appears in the work
of the Hague Conference on Private International Law on the proposed
Convention on Jurisdiction and Foreign Judgments in Civil and
Commercial Matters. See art. 18 (3) of the preliminary Draft Convention
adopted by the Special Commission of the Hague Conference on June 18,

                                    24
     The principle of complementarity reflected in the Rome
Statute for the International Criminal Court imposes a
similar rule of preference for local remedies. Under the
Rome Statute, States that may exercise jurisdiction on the
traditional bases are given the first opportunity to investigate
and prosecute alleged offenders. If those States are unable or
unwilling to proceed, however, a prosecution may be
initiated in the International Criminal Court.57 There is some
support for the proposition that the same approach should be
taken to the exercise of universal criminal jurisdiction.58


1991 but then revised in October 1999. In June 2001, the Nineteenth
Diplomatic Session drew up a new version of this text that was not
adopted. The drafts listed both accepted and prohibited bases of
jurisdiction. Generally, a Contracting State would have to refuse to
enforce a judgment rendered on a prohibited basis of jurisdiction,
including where there was no substantial connection between the State
that exercised jurisdiction and the facts of the case. However, art. 18 (3)
provided an exception for States exercising jurisdiction over actions
claiming damages for (a) genocide, crimes against humanity, and war
crimes; and (b) certain other offenses where the party seeking relief
would otherwise be exposed to the risk of a denial of justice because
proceedings in another State were not possible or could not reasonably be
required. Work on this Convention has effectively ceased. See
<http://www.hcch.net/e/workprog/jdgm.html>.
57
    Rome Statute of the International Criminal Court, supra, Preamble
(ICC complementary to national criminal jurisdictions); art. 17(1)(a), (b)
(case generally inadmissible unless state with jurisdiction unwilling or
unable genuinely to carry out investigation or prosecution).
58
     Universal criminal jurisdiction often involves a duty to extradite or
prosecute suspects. See, e.g., Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, supra, arts. 5(2),
7. This may require some deference to states exercising jurisdiction
under traditional bases of jurisdiction. See Steven R. Ratner, Belgium’s
War Crimes Statute: A Postmortem, 97 AM. J. INT’L L. 888, 895 (2003)
(priority to prosecute belongs to the state of territoriality if it is willing
and able to do so); The Princeton Principles on Universal Jurisdiction,

                                     25
    Just as the content of the customary norms encompassed
by the Alien Tort Statute must be interpreted in line with the
evolution of international law, so, too, must the scope of
their application take account of the unsettled state of the law
relating to universal civil jurisdiction and of the emerging
conditions and limitations of its exercise.

                           CONCLUSION

        The European Commission respectfully requests this
Court, if it holds that the Alien Tort Statute sets forth a cause
of action, to define the cause of action by reference to the
substantive content and jurisdictional limits of international
law. The substantive content of the law of nations requires
courts to adhere strictly to the rules for identifying customary
international law, while exercising care to avoid
retrospective application of newly developed norms. Courts
should also recognize the exceptional conditions under
which individuals and corporations may be held liable under
international law.

        Further, the Alien Tort Statute should be interpreted
to comport with limits on the United States’s jurisdiction to
prescribe.    Hence, the Alien Tort Statute should be
interpreted to reach conduct with no nexus to the United
States only where that exercise accords with principles
governing universal jurisdiction. The existence and scope of
universal civil jurisdiction are not well established. To the
extent recognized, it should apply only to a narrow category

Principle 8 (2001) (providing criteria for determining whether states
should prosecute or extradite); see also Case Concerning the Arrest
Warrant of 11 April 2000, supra, ¶ 59(3) (Joint Separate Opinion of
Judges Higgins, Kooijmans and Buergenthal) (state contemplating
exercising universal jurisdiction must first offer national State of suspect
opportunity to act ).



                                    26
of conduct and should be exercised only when the claimant
would otherwise be subject to a denial of justice.



                           Respectfully submitted,


                           Jeffrey P. Cunard
                             Counsel of Record
                           Gaetan Verhoosel
                           Anthea E. Roberts
                           DEBEVOISE & PLIMPTON LLP
                             555 13th Street, N.W.
                             Washington, D.C. 20004
                             (202) 383-8118

                           Counsel for Amicus Curiae

Dated: Washington, D.C.
       January 23, 2004




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